1511220 (Migration)

[2015] AATA 3733

1511220 (Migration) [2015] AATA 3733 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shumao Lin

CASE NUMBER:  1511220

DIBP REFERENCE(S):  CLF2013/2646

MEMBER:Nicholas McGowan

DATE:Tuesday November 17, 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·     cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made 17 November 2015 at 2:35pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision (July 30, 2015) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant applied for the visa on December 20, 2012 on the basis of his relationship with his Australian citizen sponsor Ms Rong Yu. The applicant appeared before the Tribunal on November 17, 2015. The Tribunal received oral evidence from the sponsor and witnesses (4): Ms Yi Ling, Mr Stefanus Jong, Ms Gui Juan Warman, Ms Zeng Hong Wang). The applicant was represented and an interpreter provided.

   ISSUE

2. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.

   CONSIDERATION OF EVIDENCE

3. The Tribunal has considered the evidence in the Department’s file and its own file, and the applicant’s agent’s submission (handed to the Tribunal at hearing).

4. The Tribunal considered the oral evidence of the applicant and sponsor (in particular), during the hearing to be spontaneous and candid, and therefore credible and reliable.

   Schedule 3 criteria

5. The Schedule 3 criteria are ‘time of application’ criteria.

6. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

7. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2).  In this case the applicant advised the Tribunal that he last held a substantive visa on November 5, 1999 and the visa application was lodged more than 28 days later. Therefore, Schedule 3 criteria 3001 is not met.

8. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

   Compelling reasons

9. The Tribunal is required to consider the circumstances existing at the time of application in considering whether there are compelling reasons to not apply the Schedule 3 criteria: Boakye-Danquah v MIMIA [2002] FCA 438 at [39]. The compelling reasons for not applying the Schedule 3 criteria must be reasons which are relevant to the purpose of permitting the person to make an application for a spouse visa in Australia: Monakova v MIMA [2006] FMCA 849 at [27]-[28].

10. While for the purposes of both the waiver in cl.820.211 and Schedule 3, the term ‘compelling’ is not defined, the reasons should be sufficiently convincing to move a decision-maker to exercise discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 at [24].

11. Based on the oral evidence of the applicant and sponsor, the Tribunal is satisfied that they began living together as partners in 2007, albeit they had lived together prior to that time in a tenant-landlord relationship (from as early as 2002). Therefore, at time of application (December 2012) the parties had been in a relationship for around five years (a married one since April 14, 2012).

12. Further, the Tribunal is satisfied from the parties oral evidence that the sponsor came to Australia as a single (expectant) mother, and accepts the applicant played an important role in the sponsor’s child’s life (particularly during the child’s formative years, including at the time of application).

13. The parties’ witnesses provided the Tribunal with supportive (and consistent) oral evidence in this regard, emphasising the parent-like role fulfilled by the applicant, and the contribution he made to the family and in particular the emotional support to the sponsor’s son at that time. The witnesses each shared their observations with the Tribunal, which the Tribunal is satisfied universally spoke to the emotional strength (and longevity) of the parties’ relationship (including between the sponsor’s son and the applicant).

14. Accordingly, the Tribunal is satisfied from all the oral evidence, that the longevity of the parties’ relationship, and the emotional support the applicant provided the sponsor and her son, at the time of application, are compelling reasons to not apply the Schedule 3 criteria.

    FINDINGS

15. The Tribunal has considered the applicant’s circumstances at the time of application, as set out above, and is satisfied that the parties’ long-term relationship and emotional support provided by the applicant to his sponsor and her son, amount to compelling reasons for not applying the Schedule 3 criteria.

16. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

17. Given the finding above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    *  *  *  *  *

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii) the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.